HomeMy WebLinkAboutVI (D) Discussion/ Action re: Dismissal of Litigation with Orange County (Belmere) Agenda 5-6-97
Item VI D
FOLEY & LARDNER
ATTORNEYS AT LAW
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111 NORTH ORANGE AVENUE •MEMBER OF GLOBALE%
ORLANDO. FLORIDA 33801 WITH MEMBER OFFICES IN
JACKSONVILLE
TALLARIABSEE TELEPHONE 14071 423-7658 BenuS
BRUSSELS
TAMPA FACSIMILE 0I07I 648-1743 DRESDEN
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MADISON POST OFFICE BOx 2193 LOMD PARIS
WNICAGO ORLANDO, FL 32802-
ASHINGTON,O.G 31BJ SINGAPORE
STUTTGART
TAIPEI
MEMORANDUM
To: The Honorable Mayor and City Commissioners
of the City of Ocoee
From: Paul E. Rosenthal, Esq. , City Attorney it
Date: April 29, 1997
Re: City of Ocoee V. Orange County, Florida,
Case No. CI96-3561
You will recall, pursuant to the direction of the City
Commission, that the City commenced a certiorari action in circuit
court against Orange County, entitled City of Ocoee. Florida v.
Orange County, Florida, Case No. CI96-3561. In that action the
City seeks to quash Orange County's approval, on May 7, 1996, of
Comprehensive Plan Future Land Use Element Policy 2 .2.7 affecting
the Belmere property.
The parties stipulated to the entry of an order abating the
action pending, among other things, the decision of the Supreme
Court of Florida in Martin County v. Yusem, Case No. 87,078. The
expectation was that the court's decision in that case would
determine one of the major issues in the action filed by the City:
whether Orange County's adoption of an amendment to its
comprehensive plan was a quasi-judicial action or a legislative
action.
If the County's approval of that amendment was quasi-judicial,
then the decision would be subject to attack through a certiorari
proceeding filed in the circuit court, in which case the County's
decision could be quashed if the City was able to show: (1) that
the County reached the decision without affording the City
procedural due process; (2) that the decision is not supported by
competent substantial evidence; or (3) that the decision
constitutes a departure from the essential requirements of law.
ESTABLISHED legs
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If, on the other hand, the County's approval of the
comprehensive plan amendment is deemed a legislative act, then it
could not be challenged through a certiorari proceeding. The
County's action could then be successfully attacked only through an
original action in which the City is able to prove that the
County's action is not fairly debatable--an extraordinarily
difficult burden of proof to meet.
The Supreme Court of Florida has now rendered its decision in
Martin County v. Yusem, 22 Fla. L. Weekly S156 (Fla. March 27,
1997) . The court held that "all comprehensive land amendments are
legislative decisions subject to the fairly debatable standard of
review. "
It is our opinion that the Yusem decision prevents the City
from obtaining a successful result in its pending certiorari action
against Orange County. The City staff concurs with this
conclusion.
RECOMMENDATION
It is our recommendation that the City Commission authorize
Foley & Lardner to dismiss the action filed in Case No. 96-3561,
City of Ocoee v. Orange County, Florida, subject to the County
agreeing that the parties will bear their own costs and attorneys'
fees.
cc: Ellis Shapiro, Interim City Manager
Russell B. Wagner, AICP, Director of Planning
John R. Hamilton, Esq.
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